When Rakhamabai, a 19-year-old Sutar woman from Bombay was dragged to the Colonial Court in 1884, she had very little legal recourse. When she refused to live with her husband upon puberty, he sought restitution of conjugal rights, a concept imported to Hindu law by the British. British courts and the police accepted that the husband is the lord and master of his wife. Instead of following the customary law applicable to lower-caste Hindus and getting a simple kadimod (a custom involving literal breaking of a straw signifying breaking of the marital bond) in front of the Sutar panchayat, Rakhamabai had to face criminal charges before British judges. Her trial became a major event in India and England. It was to decide the fate of Hindu marriage. The question before the court was whether Hindu women have a right to renounce a pre-puberty marriage solemnised by their guardians.
The concept of Hindu marriage was discussed by legal and religious luminaries and the court was told by the likes of Lokmanya Tilak that Hindu marriage — unlike Muslim marriage which was a contract — was a sacrament. Kanyadan was the “gift” of a virgin daughter to a suitable — from obviously, the same caste — bridegroom. Since the girl was just a “gift” in this transaction, her consent to the marriage was immaterial. The court accepted this and asked Rakhamabai to either go back to her husband or face imprisonment. The matter resolved only after the Sutar panchayat intervened and Rakhamabai paid heavy monetary compensation to the husband. She went off to America to become the first women doctor to practice gynaecology in India.
What if Rakhamabai was Muslim? The matter would have been much simpler. She could have just utilised the concept of “option of puberty” and repudiated her marriage, which had been solemnised when she was a minor. Islamic marriage is a contract between a husband and wife. With meher or dower as a monetary consideration that flows from husband to wife upon acceptance of the offer of marriage. Both parties have a right to break off the contract by paying compensation to the other party. Young Muslim brides in colonial India routinely used this religious and customary right — an option not available to a British or Hindu bride. With its possibility of divorce, entitlement of maintenance and property rights both within and after the dissolution of a marriage, Islamic law was considered favourable to women in colonial public discourse.
Now, some 100 years later, we have somehow come to believe that Islamic law is archaic and barbaric towards women. Based on this belief, the Triple Talaq Bill has been passed by Parliament, paving way for criminalising the act of oral instant talaq as a way of ending a marriage. The result being that the ruling party can rejoice that they have saved Muslim women. We need to be reminded that saving Hindu women from Sati, child marriage and widow tonsuring was used by the British to justify colonial aggression in India. The plight of the women of a community is an easy sociopolitical gimmick employed to vilify a community.
While teaching family law, I witness the dismay of my students when they realise how unfair all personal laws are to women — be it Hindu, Muslim, Christian or Parsi. For example, to get rid of a violent husband, a Christian woman would have to prove cruelty and bigamy on the part of her husband. Or, for instance, that despite the requirement of monogamy in marriage prescribed by the Hindu Marriage Act, it is almost impossible for a Hindu wife to send her husband to jail for bigamy. Husbands have proved time and again in Court that the second wife is actually not so. Sometimes the first marriage itself is shown to be lacking “essential ceremonies” of homam and saptapadi, as a result of which it is invalid in the eyes of law. To obtain maintenance for women and children is an uphill task in courts, and though Hindu joint family property can now be inherited by daughters, their share is mostly given to their in-laws as dowry. Courts, at times, support the right of the family to control their daughters’ behaviour, sexuality, and marriage choices regularly. Not dissimilar to the instantly displaced Muslim woman due to the oral talaq, deserted women — Hindu women who are neither married nor divorced but merely thrown out of their matrimonial homes — are found in every village.
History shows that dogmatic religious practices have been opposed by progressive forces in every community. Hameed Dalwai, my paternal uncle, was the torchbearer of Muslim social reform. He led the first march against triple talaq in 1967 through the streets of Bombay. Following Jyotiba Phule’s Satyashodhak or truthseekers, he started Muslim Satyashodhak Samaj in 1970 in Pune. His organisation was also at the forefront of support for Shahbano against her husband’s tyranny, especially when the Congress government changed the law to accommodate the antiquated clerics. So, it is assumed that Hameed Dalwai would be pleased to know that Parliament has outlawed and criminalised triple talaq. But he died at the age of 44 in 1977— much before the Babri Masjid demolition changed the country’s atmosphere and Muslims became a hunted minority, before the Sachar Committee showed us that the economic condition of Indian Muslims has deteriorated more than that of Dalits, and much before the lynching of Muslims by mobs on suspicion of beef eating.
The 2017 triple talaq judgment of the Supreme Court was won for Muslim women by Muslim women themselves — women divorced by triple talaq with assistance from Muslim feminist organisations went to the Supreme Court. Their legal victory has been taken over by the BJP government and turned into legislation that criminalises men rather than one that provides the assurance of shelter and financial security to women in case their marriage breaks down. Must we rejoice?
The writer is associate professor at Jindal Global Law School